The morning news. [volume] (Savannah, Ga.) 1887-1900, 1887-09-27
The Demurrer Sustained and the Bill
Dismissed

DISMISSED.
Boston, Sept 26.-In the United States
Court in Boston a decision was rendered
this morning sustaining the demurrer of the
Bell Telephone Company against the gov
ernment suit, and the case was dismissed.
The opinion of the court was
written by Judge Colt who stated
that the main purpose of the bill was
to cancel two patents granted to Professor
Bell relating to the act of transmitting
speech by electricity, on the ground that
they were obtained by fraud The
court says that the first and principal ques-
tion raised by this demurrer Is whether, in
the absence of any specific statute, the
. United States, by direction of the Attorney
General can maintain bill in equity to
cancel a patent for an invention. The queS-
tion is by no means free from difficulty and
the decision of the courts in the few cases
where the point has been raised are conflict
ing.
JUDGE SHIPLEYS PRECEDENT.
Upon consideration, we are of the opinion
that carefully considered the decision of
Judge Shipley of this circuit in the case of
the Attorney General VS.. The Stamford
Chemical Works, Barnard e. Adolphus, 29S,)
to the effect that the government, in the
absence of any expressed statement, has no
power to bring bill in equity to cancel a
patent is sound and should be followed by
this court in this case. The Judge then pro
ceeds to a careful examination of the con-
stitution and acts of Congress and to decis-
ion OF cases bearing upon such acts and
articles of the constitution and arrives at
the conclusion that Congress could have
provided tnat the Government should have
the right to bring suit to cancel
patent for an invention on the ground
of fraud, but Congress has not seen fit to in
corporate such a provision into the patent
laws, and tnat is sufficient answer to this
bill. We think therefore that the history
of patent legislation under the constitution,
tends to show that Congress never intended
this power to be exercised under the present
law
POWER 10 CANCEL.
He further says that if the power of the
government to cancel a patent for an in
vention exists it must be by implication,
and must spring from general principles of
equity and Jurisprudence. After an elabo-
rate discussion of the authorities cited by
the counsel, the Judge concludes as follows:
''The main grounds on which the validity
of the Bell patents are attacked
in this bill can be raised in
an infringement suit brought under Section
1920 of the Revised Statute of the United
States. The necessity which might possibly
arise in some cases for the exercise of this
power by the government seems to be want
ing in this case. The question of power
raised by the bill is an important one,
and in view of the conflict of
authority it can only be definitely
settled by the Supreme Court. 1t is our
duty in the present case, unless clearly sat
istied that Judge Shipley was wrong, to fol-
low the law as established in this circuit in
the most learned and exhaustive opinion TO
be found on the subject The demurrer to
the bill is sustained and the bill dismissed.
TO BE APPEALED.
Solicitor General jerks will get the full
opinion OF Judge Colt in the telephone case
tomorrow. He will then direct an appeal
to the United States Supreme Court. He
thinks the government will certainly win
thiS an1e al